10.6. Market competitors

Market competitors' efforts to obtain rights of joint use constitute further secondary indicia closely related to commercial success. They may result in a positive decision on inventive step, but need not necessarily do so. In T 351/93 the board stated that the latter applied particularly where a technical and expert assessment of the invention in the light of the prior art led, according to the problem-solution approach, to the conclusion that the existence of inventive step had to be denied.

In T 812/92 – the board found inventive step was also supported by the fact that shortly before the filing date of the contested patent, one of the patent proprietor's competitors offered a customer a technical apparatus without implementing the advantageous technical solution according to the invention.

In T 252/06 the board confirmed the presence of inventive step inter alia on the grounds that the patent proprietor's competitors had used the patent's teaching and had filed applications relating to it.